EAB made extensive findings of fact and PacifiCab does not dispute them.
As relevant to this case, and in broad strokes--more detail follows in our discussion
below--EAB found that PacifiCab had contracts with two public transit entities, Tri-Met
and Ride Connection, to provide medical transportation services for qualifying
individuals in Washington County. PacifiCab hired drivers, including claimant, to
provide those services. PacifiCab allowed its drivers to use their own vehicles if the
vehicles met certain standards or to lease company vehicles. Because her own vehicle did
not meet the standards (it was too old), claimant leased. PacifiCab also allowed drivers to
provide rides to customers independently, that is, without use of PacifiCab's dispatch
service. As payment for her services, claimant received her fares minus the following
deductions: a weekly assessment of $250 in "dues"; a percentage of her PacifiCab-generated fares to cover dispatch fees and other services; and $125 per week to lease the
vehicle (including its two-way radio). Claimant was discharged for violating some of the
standards specified in her contract after Tri-Met and Ride Connection informed PacifiCab
that, because of those violations, claimant could no longer be used for agency contract
work. Claimant sought unemployment insurance benefits, and these proceedings
followed.

Oregon's unemployment insurance statutes, ORS chapter 657, apply only to
"employment," defined with certain exceptions as "service for an employer * * *
performed for remuneration or under any contract of hire * * *." ORS 657.030(1). The
parties agree that claimant performed services for remuneration and under contract.
However, one of the exceptions, ORS 657.040(1)(a), states that "employment" does not
include services performed by an "independent contractor, as that term is defined in ORS
670.600[.]" That statute, in turn, provides that, to be considered an "independent
contractor," an individual such as claimant must meet eight "standards." Each standard is
conclusive, not a factor to be weighed. Trabosh v. Washington County, 140 Or App 159,
163, 915 P2d 1011 (1996). To overcome the department's determination that claimant
was an employee, PacifiCab must prove that claimant met all of those standards. Travel
Networkers, LLC v. Employment Dept., 175 Or App 502, 505, 30 P3d 416 (2001);
Canvasser Services, Inc. v. Employment Dept., 163 Or App 270, 272, 987 P2d 562
(1999), rev den, 329 Or 650 (2000).

EAB found that PacifiCab failed to provide persuasive evidence that
claimant was free from the direction and control of PacifiCab over the means and manner
of her work, subject only to PacifiCab's right to specify desired results, ORS 670.600(1);
that she had authority to hire and fire employees, ORS 670.600(4); that she was paid on
completion of specific portions of her work, ORS 670.600(5); and that she represented to
the public that her services were provided by an independently established business, ORS
670.600(8). Because we agree that PacifiCab did not prove that claimant met this last
standard, public representation as an independently established business, we do not decide
whether EAB's conclusions regarding the other standards are also correct.

ORS 670.600(8), the standard on which we focus, provides:

"The individual or business entity represents to the public that the
labor or services are to be provided by an independently established
business. * * * [A]n individual or business entity is considered to be
engaged in an independently established business when four or more of the
following circumstances exist:

"(a) The labor or services are primarily carried out at a location that
is separate from the residence of an individual who performs the labor or
services, or are primarily carried out in a specific portion of the residence,
which portion is set aside as the location of the business;

"(b) Commercial advertising or business cards as is customary in
operating similar businesses are purchased for the business, or the
individual or business entity has a trade association membership;

"(c) Telephone listing and service are used for the business that is
separate from the personal residence listing and service used by an
individual who performs the labor or services;

"(d) Labor or services are performed only pursuant to written
contracts;

"(e) Labor or services are performed for two or more different
persons within a period of one year; or

"(f) The individual or business entity assumes financial
responsibility for defective workmanship or for service not provided as
evidenced by the ownership of performance bonds, warranties, errors and
omission insurance or liability insurance relating to the labor or services to
be provided."

To prevail, PacifiCab must demonstrate that claimant met four of the
requirements. Clearly, PacifiCab met its burden with respect to subsection (a): Claimant
provided services primarily (indeed, entirely) away from her residence. The department
does not contend otherwise. Likewise, the parties do not dispute that claimant performed
services "only pursuant to written contract[]" with PacifiCab, thereby meeting the
requirement in subsection (d).

Further, it is arguable that PacifiCab demonstrated that claimant met the
requirement of subsection (f), which deals with whether a claimant "assumes financial
responsibility" for defective or incomplete work. EAB found that claimant signed a
contract agreeing to "indemnify and hold PacifiCab harmless as to any judgments, claims,
or causes of action brought or assessed against PacifiCab for her negligence or failure to
fulfill her responsibilities." PacifiCab maintains that that agreement constituted a
"warranty," as that word is used in subsection (f). The department responds that, by
promising to indemnify PacifiCab and hold it harmless, claimant promised only that she
would not attempt to make PacifiCab liable for damages; she promised nothing about
assuming responsibility herself. In fact, the department argues, the contract she signed
with PacifiCab indicates how claimant was supposed to "assume financial responsibility"--she was to "maintain, at [her] expense, such insurance as will fully protect [her] from
claims of any nature arising from the performance of [her] services." At most, the
department argues, claimant's contract indicates that she promised to assume financial
responsibility by purchasing liability insurance, but subsection (f) requires more than a
promise; it requires actual assumption of responsibility, and the EAB found that she "did
not purchase insurance coverage to protect her from claims arising from the performance
of her work transporting PacifiCab's clients." Thus, according to the department, she did
not actually "assume financial responsibility."

We need not resolve that dispute. Even if we were to conclude that
PacifiCab were correct, it would still need to establish that claimant met the requirements
of at least one more subsection. It has not done so. With respect to the three remaining
subsections, PacifiCab's efforts to prove that claimant held herself out as an independently
established business fall short.

Regarding subsection (b), the record contains no evidence (and PacifiCab
does not contend) that claimant belonged to a trade association, and EAB found that she
"did not purchase business cards or advertise her services as a driver * * *." PacifiCab
concedes those findings but contends that they are irrelevant. Not having cards and
advertising militates against independent contractor status, PacifiCab maintains, only if
cards and advertisements are "customary in operating similar businesses," ORS
670.600(8)(b), and they are not customary in the taxicab business. However, PacifiCab
failed to convince EAB of that fact and, indeed, introduced documentary evidence
demonstrating that other independently established taxicab businesses do use cards and
advertisements. EAB's findings with respect to cards and advertisements are therefore
supported by substantial evidence. ORS 657.282; ORS 183.482(8)(c); Canvasser
Services, Inc., 163 Or App at 273.

To show that claimant met the requirements of subsection (c), PacifiCab
needed to establish that she had a "telephone listing and service" that were "used for the
business" and were "separate from the personal residence listing and service." It is
undisputed that, although claimant briefly paid PacifiCab for use of a cell phone and later
used a cell phone of her own for personal calls, she never had a business telephone
number or anything resembling a separately listed service.

We conclude, then, that PacifiCab did not demonstrate that claimant
possessed sufficient indicia of status as an independently established business to meet the
requirements of ORS 670.600(8). That being the case, we necessarily conclude that she
has not been shown to be an independent contractor.

In addition to its argument that claimant is an independent contractor,
PacifiCab also argues that, in any event, we must remand this case under ORS
183.482(8)(b)(B) because "the agency's exercise of discretion * * * [was] inconsistent
with * * * an officially stated agency position, or a prior agency practice, * * * [and] the
inconsistency is not explained by the agency." In particular, PacifiCab argues that EAB's
order declaring claimant to be an employee is inconsistent with two letters issued by the
department. The first, from the department's tax section, stated that PacifiCab drivers
"appear to be independent contractors for the audit period," that is, between January 1,
1996 and June 30, 1998. The second, written on November 15, 1998, informed a
particular driver that she was an independent contractor and not an employee.

We reject PacifiCab's argument for several reasons. First and most
basically, the argument appears for the first time in PacifiCab's brief before this court; it
was never raised below, so no error was preserved. In such circumstances, we decline to
consider the issue on appeal. Don't Waste Oregon Com. v. Energy Facility Siting, 320 Or
132, 150-51, 881 P2d 119 (1994). Second, the argument is plainly meritless. Even if an
adjudicative agency such as the EAB were governed by the statute requiring agency
consistency in the exercise of discretion, an issue we do not and need not decide,
PacifiCab would still have to demonstrate that the facts underlying the agency's
determination in the prior cases were equivalent in relevant respects to the facts
underlying the present case. It has not attempted to do so.

Affirmed.

1. Despite the remand, EAB's order is final and therefore reviewable. ORS
657.282; ORS 183.480. That is so because it is a statement that "preclude[s] further
agency consideration of the subject matter of the statement." ORS 183.310. The hearing
officer's decision did not reach the merits of the claim, so the only "subject matter" before
EAB was whether claimant was an independent contractor or an employee.

2. If the relationship at issue were the one between claimant and her
passengers, then PacifiCab might prevail with respect to subsection (e), but it would
necessarily fail with respect to subsection (d) because there is no evidence that claimant
performed her services for passengers "only pursuant to written contracts" with them.

3. Broadway Deluxe Cab is distinctly different from the present case in many
respects. Most obviously, it involved application of the common-law test for independent
contractor status, which focused exclusively on whether the employer had the right to
direct and control the provision of services and involved a balance of several factors,
none of which was whether the drivers held themselves out as independently established
businesses.